Wednesday, October 16, 2013

Same-Sex Marriage Advocates Oppose Stay of Court Mandate

The strong impulse on the New Jersey high court is probably to stay a trial judge's order allowing same sex marriage beginning October 21.  Garden State Equality - the plaintiffs - oppose the stay in a brief filed yesterday.  The state's Supreme Court has set an expedited briefing schedule, and will hear argument in early January.   But if they see the merits as very strong, why wait?   If they allow same sex marriage the beneficiaries won't be able to retroactively marry to get the tax breaks or Social Security benefits to which marriage would entitle them.
What, really, could be the basis for denying the right of same sex couples to marry since the Court, in Lewis v. Harris mandated equality between civil unions and marriage.  The Legislature has concluded that only marriage achieves equality, and the United States has said that only those who are married are entitled to federal spousal benefits.   In the ordinary case the strong policy of deference to the Legislature would come into play.  But here the only obstacle to permitting same sex marriage is Governor Chris Christie who vetoed `S-1' which would have allowed gay marriage.  There is no doctrine of deference to a Governor's policy preferences that matches that of deference to the legislature. - GWC
Same-Sex Marriage Advocates Oppose Stay of Court Mandate:
Gay couples who won a New Jersey state court ruling that they have the right to marry say they would be irreparably harmed if a stay is imposed pending a Supreme Court appeal.
In papers filed Tuesday, the plaintiffs say the state's motion for a stay of the Oct. 21 implementation date would affect the couples' "fundamental personal, familial and financial security."
Mercer County Superior Court Judge Mary Jacobson granted summary judgment on Sept. 27 in Garden State Equality v. Dow to gay-rights organization Garden State Equality, six same-sex couples and their children.
Jacobson found that the state was obligated to allow same-sex marriage in light of the U.S. Supreme Court's decision in United States v. Windsor. It said legally married same-sex couples were entitled to the same federal benefits granted to other married couples.

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